Search and Seizure

“Search and seizure” refers to the methods used by law enforcement to investigate crimes, track down evidence, question witnesses, and arrest suspects. It also refers to the legal rules governing these methods. At the federal level these rules are set forth in the Fourth Amendment to the U.S. Constitution, the Federal Rules of Criminal Procedure, and Title 18 of the United States Code, sections 2231 et seq. The rules and statutes refer to each other, and both are designed to provide greater detail for areas left silent by the Constitution. In addition, each state has its own set of applicable statutes, rules of procedure, and constitutional provisions. But the starting point in understanding any of these rules is the Fourth Amendment, since it sets forth the minimum amount of protection that both the state and federal government must provide against searches and seizures. Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the U.S. Supreme Court has ruled that states may provide their citizens with more protection against searches and seizures but not less.

The American Revolution was fought in part to create a system of government that would operate within the rule of law. The rule of law is represented by the idea that the United States is a nation of laws and not of men and women. Under the rule of law, the actions of government officials are limited by the legal principles, rules, and other norms that make up the U.S. legal system and not by the arbitrary or capricious whim of an individual official. Violating these legal norms in the course of official conduct can transform a law enforcer into a law breaker.

The Framers drafted the Fourth Amendment in response to their colonial experience with British officials whose discretion in collecting revenues for the Crown often went unchecked. Local magistrates were allowed to issue general search warrants to British tax collectors upon mere suspicion that a colonist was not fully complying with the tax code. Magistrates were not authorized to question the source or strength of a tax collector’s suspicion, and, once issued, general warrants permitted blanket, door-to-door searches of entire neighborhoods without regard to person, place, or time.

The writ of assistance was a particularly loathsome form of general warrant. This writ derived its name from the power of British authorities to compel local peace officers and colonial residents to “assist” in executing a particular search. A writ of assistance lasted for the life of the king or queen under whom it was issued and could be enforced by any British law enforcement officer, including customs officials who often relied on them as long-term hunting licenses against suspected smugglers.

Colonial opposition to general warrants was pervasive. In Paxton’s case, 1 Quincy 51 (Mass. 1761), James Otis appeared on behalf of the colonists who opposed issuance of another writ, arguing that before a warrant is valid it must be “directed to special officers and to search certain houses” for particular goods and may only be granted “upon oath made” by a government official “that he suspects such goods to be concealed in those very places he desires to search” (quoted in Illinois v. Krull, 480 U.S. 340 [1987]). John Adams cited Otis’ argument against the writs “as the commencement of the controversy between Great Britain and America.”

Ratified by the states in 1791, the Fourth Amendment put an end to writs of assistance by creating a constitutional buffer between U.S. citizens and the often-intimidating power of law enforcement. It has three components: first, the Fourth Amendment establishes a privacy interest by recognizing the right of every citizen to be “secure in their persons, houses, papers, and effects”; second, it protects this privacy interest by prohibiting searches and seizures that are not authorized by a warrant based on “probable cause” or that are otherwise “unreasonable”; and third, for searches requiring a warrant the Fourth Amendment states that the warrant must describe with particularity “the place to be searched, and the persons or things to be seized” and be supported by “oath or affirmation” of the officer requesting its issuance.